Updated: Dec 17, 2018
by Pranoto Iskandar, Founding Director of the Institute for Migrant Rights
The question of international law has never really been discussed until now. As of now, the constitutional court is in the process of deliberation whether international law has a place in our domestic legal system at all. While it may seem far-fetched from our everyday life, on the contrary, this will be one of our self-defining constitutional moments as one of the few non-western democracies. To be clear, today’s international law is no longer about the interests of a spurious abstract entity called state. Surprising as it may be, it embodies some fundamental norms that shape the societal relationship at the very basic level, most notably human rights. Thus, our decision to accept or reject it can be read as a token of our seriousness in political reform (reformasi). Like it or not, whatever decision the court will take is either dampening or enlivening the rigor of our pursuance of reformasithat has been going on for almost two decades without any clear agenda.
On the face of things, international law can prominently contribute to the national effort of institutional building. To be clear, international law makes for smooth-running democracy building at the domestic level. Hence, making international law available as part of the national arsenal of political and legal reform prevents us from reinventing the wheel. Doing so will save us a significant amount of time, and we can turn our attention to other pressing issues. At the intangible level, international law enhances the legitimacy of the political reform and, therefore, the overall domestic legal system. There will be no harm should the Court confirm the constitutionality of the international law and its supreme status in a domestic legal arrangement.
Let me walk you through the argument of why international law is critical in an effort to build a better functioning democracy. While the case against international law is solely sourced from a much narrower dogmatic nationalism vantage, this rebuttal is supposedly based on our own self-interest as a democratic nation that is struggling for a better and more humane political system. The empirical evidence unambiguously confirms that former authoritarian countries view international law favorably, across the board. One of the most prominent indicia of its reception is the constitutional acknowledgement in which international law reigns supreme. In fact, this is one of the laudatory features of the 1996 South African Constitution that has been widely crowned as the gold standard in almost every way. For many others, the experience of having an oppressive regime is sufficient reason to admit that a domestic legal system is not enough. It is reasonable that the frailty of relying only on one set of legal norms has led them to see the international legal system as a “safety net.”
This above situation leads to another interesting proposition in which foreign legal systems, such international law, is credible to a myriad of domestic audiences. One plausible answer is that it has something to do with the overlooked function of international law. Recall the fact that international law has encompassed many non-traditional concerns of state interests; the acceptance of international law by the domestic political actors can function as a pre-commitment device. As a pre-commitment device, international law serves as a restraining tool for all participants to stick to the rule. More importantly, since the drafting process of international law has normally been detached from any national context, it is reasonable that domestic players perceive it as a disinterested legal system. Put simply, the fact that international law is an alien product is indeed its selling point in the domestic rule of law building.
The next important proposition is that it is not necessarily true that international law benefits the stronger international actors. Along this line, some argue that international law preys on weaker parties. As one can easily observe, this claim does not match with a recent outlandish reality where the United States broke ranks with the global system that it painstakingly put in place. It is worth noting, international law is also a form of law, albeit without any clear substitute institutions for its domestic counterpart. Once we accept this statement, it is clear that as a form of law it introduces a rule of law. Meaning, the condition of having the rule of law is that every action is within the boundary of law. An immediate implication is that for those with more resources, meaning having more capacity to make more actions, the existence of international law is annoying at best, and limiting at worst.
In terms of our enterprise in democracy building, international law surely will help us to leapfrog in the process by not having to build it from scratch. As it stands, our democracy has been plagued by serious human rights issues that mostly relate to the insufficiency of the domestic legal system that desperately needs radical updating. Bluntly put, our prevailing legal system simply could not keep up with the harsh realities where basic rights are constantly on the line. This is not surprising given the fact that the legal system is a product of tedious political horse-trading, international law may be one answer to this depressing situation. By acknowledging international law constitutionally, we send a signal to the domestic audience that the international law toolbox is at our disposal. To be concrete, in complex cases, such as the death penalty or religious freedom, there will be no need for the judiciary to reinvent the wheel.
By confirming the constitutionality of international law, we, as a nation, take a higher moral ground. Voluntarily submitting to a higher standard is no foolish act. Rather, taking the moral high ground is non-negligible leverage in our human rights diplomacy for the interests of our fellow citizens who happen to engage in a low-wage working in some precarious jurisdictions. Going back to the domestic, having ourselves accountable for a higher standard does not mean that this is a silly decision. Rather, it confirms our commitment as a collective to deliver a better life not only for us, the next generation, and those who live in our jurisdiction but also to the world that we are greater than a narrow-minded nation.
From here on, it is clear that international law is, like many other human inventions, is no more than a tool. It depends on its users’ intention. In other words, international law is a value-free tool. From this standpoint, the most important thing is the value that we have assigned to international law. In so doing, it is perfectly reasonable for us to be pragmatic with regard to what position we should adopt in our recognition of international law. Connecting it with the above, it is undeniably nonsensical to turn down international law not only as an invaluable but also an indispensable resource in our desperate struggle to find a better system to help us streamline our democratic way of life. All things considered, rejecting international law should be seen as another regressive step in our struggle for the ideals of reformasi.